New Ruling Says KaZaA's 'Shared Folder' Isn't Distribution

Contradicts previous federal court ruling that defined 'distribution' as 'publication' and therefore illegal under copyright law.

The issue of KaZaA's '"shared folder" won't be settled quietly it seems. Just days ago I reported how in the case of Elektra v. Barker a judge in the 2nd Federal District Court in New York decided that the RIAA could amend it's lawsuit in order to define "distribution" as "publication." The defendant in the case had argued that merely putting music in KaZaA's shared folder in and of itself didn't constitute distribution, that it must be proved that somebody actually downloaded music files from here.

The judge disagreed and ruled that putting music files in the shared folder is the same as "publication" and therefore not subject to such a determination. He noted that that the defendant "made an offer to distribute, and that the offer to distribute was for the purpose of further distribution, public performance, or public display."

Now in the case of London-Sire v. Doe the 1st Federal District Court in Boston has made a contradictory ruling on the same issue, determining that "distribution" is not the same as "publication," that the terms are not "congruent," the ruling reads and "...even a cursory examination of the statute suggests that the terms are not synonymous."

"Merely because the defendant has 'completed all the steps necessary for distribution' does not necessarily mean that a distribution has actually occurred," Judge Nancy Gertner writes in her decision. "It is a 'distribution" that the statute plainly requires."

She continues:

By the plain meaning of the statute, all "distributions . . . to the public" are publications. But not all publications are distributions to the public -- the statute explicitly creates an additional category of publications that are not themselves distributions. For example, suppose an author has a copy of her (as yet unpublished) novel. If she sells that copy to a member of the public, it constitutes both distribution and publication. If she merely offers to sell it to the same member of the public, that is neither a distribution nor a publication. And if the author offers to sell the manuscript to a publishing house "for purposes of further distribution," but does not actually do so, that is a publication but not a distribution.

Plainly, "publication" and "distribution" are not identical. And Congress' decision to use the latter term when defining the copyright holder's rights in 17 U.S.C. ß 106(3) must be given consequence. In this context, that means that the defendants cannot be liable for violating the plaintiffs' distribution right unless a "distribution" actually occurred.

Bravo. Even better is that Judge Gertner points out that "... to constitute a violation of the distribution right under SS106(3), the defendants' actions must do more than 'authorize' a distribution; they must actually 'do' it.

So in other words, it means that simply putting music files in KaZaA's "shared folder" does not by itself mean one is distributing music files illegally. One must prove that somebody actually downloaded a song from the individual in order to claim that an authorized "distribution" took place.

While this is an important victory, the decision may not change much for most individuals targeted for RIAA lawsuits. For the judge also concludes that evidence of an "offer to distribute" is enough to permit a lawsuit to move forward, even if it's not enough to decide the matter.